Bill C-5, Prime Minister Mark Carney’s major projects legislation, became law in late June despite strong and growing opposition from Indigenous Peoples.
It enables the federal government to expedite the approval of large nation-building projects, specifically infrastructure and energy projects deemed in the national interest, as well as breaking down interprovincial trade barriers. The government says the goal is to build a strong Canadian economy to combat U.S. President Donald Trump’s tariff and other threats.
The new “one-project, one review” approach replaces the previous multi-step process that Carney says was “arduous” because it forced the projects to undergo multiple steps one after another – including consultation with First Nations and environmental assessments – rather than at the same time.
Indigenous leaders say Bill C-5 was passed without meaningful consultations and fear it will enable the government to override or limit its constitutional duty to consult First Nations in the nation-building project approval process, despite government promises it is committed to Indigenous consultation.
“As Canada moves forward with nation-building projects, the Government will always be firmly guided by the principle of free, prior, and informed consent,” it said in the recent Throne Speech. The same principle was included in Bill C-5.
However, the government’s slow and poorly defined approach to consultations over many years is rapidly igniting the embers of an Indigenous protest movement and the possibility of court challenges.
Ottawa must quickly get on the same page with the First Nations or it will create serious obstacles to its nation-building priorities.
I suggest the existing constitutional duty to consult was not, and is not, the obstacle to embarking on major projects in Canada.
Rather, what is holding the government and First Nations back from being on the same page when it comes to speeding up nation-building projects is two-fold:
First, there is confusion between consultations, consent and veto power (the question of what consultations are supposed to achieve) .
Second, there are discrepancies between the federal government’s guidelines and practices, First Nations’ expectations and legal requirements (the question of which standards should be used).
From free, prior and informed consent to consultations and veto power
Consultations – the mechanism Canada tries to use to obtain Indigenous consent – should not be confused with consent itself.
Consent is supposed to be “free, prior and informed.” First Nations insist on that because it is the definition laid out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This became Canadian law in 2021 after both Conservative and Liberal governments refused to sign on to UNDRIP for 14 years and sometimes even actively worked against it.
These governments had no objections to consultations. However, there were worries that committing to free, prior and informed consent would prevent Ottawa from achieving its goals when those goals infringed on Indigenous rights to their land or overrode consent requirements – as has been the practice in Canada.
During the 2020 debate on adopting UNDRIP as part of Canadian law, the late Murray Sinclair, who was then a senator, said the contentious point “has become the question of whether respecting Indigenous rights might be bad for Canada’s economy. The principle of free, prior and informed consent, in particular, has been a concern for some.”
Also in 2020, the Supreme Court ruled that free, prior and informed consent means the“right to a robust process.”
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“It is not a veto or a right to a particular outcome,” the court said. It is sufficient that there be a “deep level of consultation and negotiations geared toward a mutually accepted arrangement.”
Justice Minister Sean Fraser created a controversy recently when he said the UNDRIP law does not give Indigenous Peoples “a blanket veto power.” He apologized the next day, saying his statement eroded trust between the government and Indigenous Peoples.
Terry Teegee, regional chief of the Assembly of First Nations in British Columbia, countered that “no government has a veto” and that decisions should be made collectively.
The distinction between consultation, veto power and consent is that the former two can be mechanisms or parameters for obtaining consent, yet they are too often confused for, or erroneously used as synonyms for, the objective of consent.
Who decides which consultations are adequate?
While First Nations see consultation as the vehicle to achieve free, prior and informed consent, the government’s perspective tries to focus on reconciliation and compromise.
The discrepancies among Canadian government guidelines and practices, First Nations’ expectations and existing legal requirements pose an obstacle to meaningful consultations that can effectively contribute to fast-tracking nation-building projects.
In 2011, Ottawa set out guidelines for meaningful consultations, but its actions have repeatedly fallen short of its own standards and those set out by the court.
A 2016 report to the minister of Indigenous and Northern Affairs clearly highlighted the “lack of coordination and consistency on consultation both within the federal government and with the provinces and territories.”
The following year, the Supreme Court said in its Clyde River decision that when a First Nation with a strong rights claim is potentially significantly affected by a project, the National Energy Board should “at least explain” how it considered and addressed the First Nations’ concerns to meet the threshold of deep consultation.
In her 2018 federal court Tsleil-Waututh decision on the Trans Mountain Pipeline, Judge Eleanor Dawson criticized Ottawa’s approach on several fronts – “the Crown consultation team’s implementation of their mandate essentially as note-takers, Canada’s reluctance to consider any departure from the Board’s findings and recommended conditions, and Canada’s erroneous view that it lacked the ability to impose.”
The problem is not that consultations sometimes fail to lead to consent. Rather, the failures in a growing body of past cases concerning resource development – that were not fast-tracked – show that the processes the government designed do not lead to meaningful consultation.
When Carney vows that “consultation, co-operation, engagement, participation is at the heart of C-5,” some of the Indigenous leaders’ skepticism is well-warranted.
For example, former Liberal justice minister Jody Wilson-Raybould says it will enable the government to “make decisions and build projects on its own terms, at its own pace and based on rules that it chooses to make up as they go along.”
On the other end of the spectrum, First Nations have wide-ranging interests and expectations that render fulfilment of the duty to consult difficult.
For example, Six Nations of the Grand River have a 13-step consultation procedure. In form and in some respects in content, it differs from the expectations of other First Nations, including that all expenses for consultations must be covered by the Crown.
In addition, when the federal government invited Cindy Woodhouse Nepinak, national chief of the Assembly of First Nations, to consult on Bill C-5, she replied that the AFN is “not a one-stop shop” for consultation or a rights holder.
The government’s guidelines to meaningful consultation include providing enough time for Indigenous groups to “assess adverse impacts and present their concerns.” Yet, the government letter to some First Nations leaders asking them to voice any concerns with Bill C-5 within seven days did not give them sufficient time to properly respond.
The discrepancies over what constitutes meaningful consultation – and who should decide what is meaningful – complicate the road to fast-tracking nation-building projects.
What happens next?
In his 2016 report to the minister of Indigenous and Northern Affairs, consultant Bryn Gray noted: “Early engagement is frequently singled out by both Aboriginal groups and industry as a key ingredient of meaningful consultation.”
He recommended “greater emphasis on engaging Aboriginal groups as early as possible before key components of a project or a proposal are finalized and become difficult to change.”
Yet, this didn’t happen with C-5.
Indigenous leaders were not invited to the first ministers’ meeting on it, despite their insistence, leading Alvin Fiddler, grand chief of the Nishnawbe Aski Nation, to complain that Ottawa was again failing to consult First Nations from the beginning.
Indigenous leaders are concerned that the possibility of free, prior and informed consent that they associate with consultations is already beginning to fade. The Carney government must change its approach and honour its commitments before it is too late.
